| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2018] NZERA Auckland 67 |
| Hearing date | 23-Feb-18 |
| Determination date | 27 February 2018 |
| Member | J Trotman |
| Representation | T Gibbs (in person) ; C Liu (in person) |
| Location | Auckland |
| Parties | Gibbs v Artelier Dwell Ltd and Anor |
| Other Parties | Liu |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Whether applicant employed by first or second respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – PENALTY – Applicant sought penalty for respondents breach of the Holidays Act 2003 – Senior Technician |
| Abstract | AUTHORITY FOUND – PRACTICE AND PROCEDURE: Advert for applicant’s position and offer of employment made no reference to first respondent. No information given to applicant to indicate first respondent was his employer. Applicant paid by first respondent but he was not aware of the fact. Applicant employed by second respondent. ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to be paid agreed notice period following dismissal. Second respondent to pay applicant $1,730 arrears of wages. Respondent to pay applicant $1,800 arrears of holiday pay. PENALTY: Second respondent failed to pay applicant holiday pay entitlements on termination of employment. Applicant deprived of statutory entitlement to annual leave over 6 month period. Applicant suffered financial hardship over this time. No mitigating circumstances. $3,000 penalty appropriate. |
| Result | Applications granted ; Arrears of wages ($1,730.76) ; Arrears of holiday pay ($1,800) ; Penalty ($1,500)(Payable to applicant)($1,500)(Payable to Crown) ; Disbursements in favor of applicant ($71.56)(filing fee) |
| Main Category | Arrears |
| Statutes | ERA s65 ERA s131 ERA 174E Holidays Act 2003 s23 Holidays Act 2003 s63(3)(b) Holidays Act 2003 s75 Holidays Act 2003 s75(2) |
| Cases Cited | Boorsboom v Preet PVT Ltd [2016] NZEmpC 143 Cuttance (t/a Olympus Fitness Centres) v Purkis [1994] 2 ERNZ 321 (EmpC) Lumsden v Skycity Management [2017] NZEmpC 30 Mehta v Elliot [2003] 1 ERNZ 451 (EmpC) |
| Number of Pages | 10 |
| PDF File Link: | 2018_NZERA_Auckland_67.pdf [pdf 161 KB] |